The High Court subsequently adjourned proceedings to 12 June 2024, pending clarification from the Chief Justice regarding how this transfer instruction affects the ongoing matter. The directive — issued by the Judicial Secretary on behalf of the Chief Justice — contained no explanation of the petition or circumstances that justified it.
The Transparency Concern
The author's primary concern is the lack of transparency attending the directive. No rules prevent disclosure of the contents of such petitions, particularly where the matter has been reduced to a formal administrative instruction affecting live criminal proceedings. Administrative actions enjoy a presumption of regularity with respect to their performance — but that presumption does not extend to whether the functions were performed in good faith or on a proper basis.
Where an administrative directive has the practical effect of removing jurisdiction from one court and vesting it in another — a consequence of considerable moment to the parties and their counsel — there is a legitimate expectation that the basis for that directive be disclosed, at least to the parties affected.
Supreme Court Rules 38
SCR 38 confers a broad power on the Chief Justice to give directions concerning the exercise of the jurisdiction of the courts. It is not disputed that this power exists. The question raised by this case is not whether the power exists but how it should be exercised — and in particular, what procedural safeguards should attend its exercise when it affects ongoing criminal proceedings.
Criminal proceedings carry particular weight. The liberty of the accused is at stake. A transfer from Wa to Kumasi is not a minor logistical matter; it has implications for the accused's ability to obtain legal representation, for witnesses, and for the ability of the families of both the accused and the complainants to participate in proceedings. These are not considerations to be set aside by administrative directive without explanation.
Power exercised without fairness is power exercised unlawfully. The manner in which constitutional authority is exercised must conform to the principles of natural justice embedded in Ghana's legal tradition.
The Principle of Audi Alteram Partem
The principle of natural justice requires that those affected by an administrative decision be given an opportunity to be heard before it is made. It is not clear from the available information whether the parties to the criminal proceedings were given any such opportunity before the Chief Justice's directive was issued. If they were not, the validity of the directive may be open to challenge on grounds of procedural impropriety.
It is not enough to say that the Chief Justice has the power to issue such directives. The manner in which the power is exercised must conform to the principles of fairness that are embedded in Ghana's constitutional and common law tradition. Power exercised without fairness is power exercised unlawfully.
Conclusion
This case raises important questions about the procedural safeguards that should govern the exercise of the Chief Justice's administrative powers under SCR 38. The absence of explanation for the directive, and the failure to disclose the petition that prompted it, are matters of legitimate concern. Criminal proceedings affect fundamental rights, and the exercise of administrative power in such proceedings must be attended by transparency, fairness, and respect for the parties' right to be heard.